Shon E. Denton-Higgs v. Commonwealth of Kentucky

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RENDERED: JUNE 25, 2026

NOT TO BE PUBLISHED

Supreme Court of Kentucky 2025-SC-0169-MR

SHON E. DENTON-HIGGS APPELLANT

V.

ON APPEAL FROM HENDERSON CIRCUIT COURT

HONORABLE KAREN LYNN WILSON, JUDGE

NO. 23-CR-00305

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Shon E. Denton-Higgs was convicted by a Henderson County jury of first-degree assault, first-degree attempted assault, first-degree wanton endangerment, and fourth-degree assault. He received a total sentence of thirty-five years' imprisonment and appeals to this Court as a matter of right.¹ Having carefully considered the law, record, and briefs, we affirm.

FACTS AND PROCEDURAL BACKGROUND

In June 2023, Denton-Higgs was twenty-one years of age and lived with his mother, Maegan Fulkerson, in a house owned by her father-in-law, Gary Cook, who resided in the garage. Denton-Higgs' maternal grandfather, Randy Lunneborg, also resided on the premises.

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On June 7, 2023, Fulkerson went to Denton-Higgs' room to inquire about a loud banging sound. After some discussion, Denton-Higgs told her he was looking for his "one-hitter" pipe.²An argument ensued³during which Denton-Higgs threw a banana peel at Fulkerson. She told him to go outside and calm down. On his way out of the house, Denton-Higgs encountered Lunneborg whom he cursed and threatened to assault with a pair of brass knuckles.

Between fifteen and thirty minutes later, Fulkerson went to the garage to check on the situation. Fulkerson was worried because Cook, an elderly man, was in the garage with Denton-Higgs along with many weapons. Fulkerson was also concerned that Denton-Higgs might try to harm several kittens that were being kept in the garage. She asked Denton-Higgs if he had calmed down and demanded that he dispose of the brass knuckles. They immediately resumed arguing. Fulkerson threatened to call the police and told Denton- Higgs that he could pack up his belongings and leave if he did not like how he was being treated in her household.

When Fulkerson began to return to the house, she heard a noise behind her. As she turned around, Denton-Higgs shot her in the jaw, the top of the

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head, abdomen, and hip. Hearing the gunfire,⁴Lunneborg came to assist Fulkerson. Denton-Higgs attempted to shoot Lunneborg twice, but the gun jammed and misfired. Denton-Higgs then threw the gun at Lunneborg and left the scene. Lunneborg told another family member to call 911. Fulkerson was rushed to the hospital. Dr. Malory Bray examined Fulkerson and discovered five holes in her bowels caused by the gunshots. Dr. Bray performed emergency surgery to repair these injuries. Fulkerson also underwent surgery to repair the wound to her jaw. She was hospitalized in the intensive care unit for ten days and was then transferred to a rehabilitation facility.

After the shooting, Denton-Higgs went to the home of his aunt, Roberta Jackson, and told her what he had done. She called the police who arrived shortly thereafter and arrested Denton-Higgs without incident. Denton-Higgs later confessed to Detective Josh Meyer of the Henderson Police Department that he shot Fulkerson because he was tired of her reporting him to the police for what he perceived to be trivial matters. He also admitted to threatening to strike Lunneborg with brass knuckles in retaliation for two prior assaults that happened "a long time ago."⁵Denton-Higgs expressed his hatred of Lunneborg before describing his attempt to shoot him.

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Denton-Higgs was indicted on charges of attempted murder,⁶first-degree assault, attempted first-degree assault, two counts of first-degree wanton endangerment, third-degree terroristic threatening, fourth-degree assault, carrying a concealed deadly weapon, menacing, and harassment. At trial, he claimed to have acted under extreme emotional disturbance ("EED"). Rejecting Denton-Higgs' version of events, the jury found him guilty of first-degree assault, first-degree attempted assault, one count of first-degree wanton endangerment, and fourth-degree assault. The trial court imposed a total sentence of thirty-five years' imprisonment. This appeal followed.

LAW AND ANALYSIS

A. Trial Court Properly Excluded Lay Evidence Regarding Autism Diagnosis.

Denton-Higgs first argues the trial court erred by excluding lay testimony that he was autistic. Specifically, he contends such evidence constitutes permissible lay opinion based on the witnesses' own observations and experience.⁷We disagree.

Prior to trial, Denton-Higgs provided notice of his intent to introduce expert testimony concerning a mental health disorder which bore on the issues of guilt and punishment. The trial court ordered Denton-Higgs to undergo a

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mental health evaluation and directed him to disclose any expert evidence he intended to produce at trial. After Denton-Higgs failed to timely make the required disclosure, the Commonwealth moved to restrict Denton-Higgs from asserting an insanity or criminal-responsibility defense. The trial court deferred ruling on the motion and ordered Denton-Higgs to disclose any expert witnesses or written reports regarding mental illness or insanity within fourteen days of trial.

After Denton-Higgs failed to disclose any pertinent expert or medical evidence, the Commonwealth again moved to restrict Denton-Higgs from asserting an insanity or criminal-responsibility defense. The Commonwealth also moved to exclude, on hearsay grounds, any testimony or comments at trial about Denton-Higgs' alleged autism. The trial court initially deferred its ruling on the issue but later indicated that it saw no exception to the hearsay rule that would allow lay testimony about Denton-Higgs' autism diagnosis to be admitted into evidence.

We review a trial court's ruling to admit or exclude evidence for abuse of discretion. Commonwealth v. Melton, 670 S.W.3d 861, 866 (Ky. 2023). An abuse of discretion occurs when "the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). KRE 701 governs the admissibility of lay opinion testimony and states as follows:

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If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

(a) Rationally based on the perception of the witness;

(b) Helpful to a clear understanding of the witness' testimony or the determination of a fact in issue; and

(c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

(Emphasis added). Pursuant to this rule, "[a] nonexpert witness may express an opinion which is rationally based on the perception of the witness and helpful to a determination of a fact in issue." Clifford v. Commonwealth, 7 S.W.3d 371, 374 (Ky. 1999).

At common law, our predecessor Court consistently recognized, the prevailing rule that lay witnesses may testify as to the apparent vigor, strength, and physical condition of another person and as to the presence or absence in such person of symptoms indicating forms of disease so common and well understood as to be within the knowledge of a layman. But the evidence of a layman should be confined to facts within his knowledge and not permitted to extend to matters of opinion, since he cannot diagnose diseases or give expert evidence with reference thereto.

Equitable Life Assur. Soc. of U.S. v. Fannin, 53 S.W.2d 703, 706 (Ky. 1932). Simply put, "a layman will not be permitted to testify as an expert concerning diseases or their diagnosis[.]" Greer v. Richards' Adm'r, 115 S.W.2d 568, 573 (Ky. 1938); Hall v. Banks, 395 S.W.2d 776, 777-78 (Ky. 1965) ("Laymen certainly are not competent to make medical diagnoses, or to give conclusions which presume a knowledge of the medical arts."). Professor Lawson has observed, and we agree, that "[i]n every respect (grounded and rationally based

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on perceptions and not extending to scientific or specialized knowledge), these early decisions are compatible with the requirements of KRE 701." Robert G. Lawson, Kentucky Evidence Law Handbook § 6.10[3][a] (2025). Here, Denton-Higgs did not produce any medical evidence that he has been diagnosed with autism. Under the authority cited above, the recounting of such a medical diagnosis exceeds the personal knowledge and competence of lay witnesses, including Denton-Higgs himself.⁸Importantly, the trial court did not limit Denton-Higgs from introducing evidence relative to lay witnesses' observations of certain behaviors; it simply prohibited the attribution of these particular behaviors to a diagnosis of autism without sufficient medical evidence.

For example, various witnesses testified to Denton-Higgs' anger issues, nervousness in certain social interactions, and obsessive or unfiltered behaviors. We do not perceive any basis in the present record to conclude these types of symptoms are so well understood and commonly associated with a diagnosis of autism as to be within the personal knowledge and experience of

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the layperson. Fannin, 53 S.W.2d at 706. Therefore, the trial court did not abuse its discretion.

Denton-Higgs cites Richmond v. Commonwealth, 534 S.W.3d 228 (Ky. 2017), in support of his argument that a person may be described as autistic without resort to medical evidence. Richmond is distinguishable from the present appeal.

In Richmond, the defendant was convicted of multiple charges arising from a systematic course of abuse designed to "break" a minor child of autism. Id. at 230. The child spent seventeen days in the hospital before being released to foster care. Id. On appeal, the defendant argued the child's foster mother was incompetent to testify "regarding the neurological responses of children with autism." Id. at 233. We rejected the defendant's argument, concluding the foster mother "did not testify as an expert on neurological responses of children with autism; rather, she testified to common behaviors of autistic [] children specifically related to [the victim's] autistic behaviors, most presumably based on the eight months she had cared for the child." Id. at 234. The issue in Richmond was whether the observation of an autistic child's behavior by a lay witness was a matter of personal knowledge or medical evidence. Notably, the evidentiary foundation of the victim's diagnosis was not in dispute and was not addressed in the opinion. Thus, Richmond does not speak to the issue in the present case, and we do not perceive its reasoning to control here.

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We are similarly unpersuaded by Denton-Higgs' reliance on dicta contained in the unpublished decision of the Pennsylvania Superior Court in Commonwealth v. Schiefelbein, 290 A.3d 662 (Table), 2022 WL 17484327 (Pa. Super. Ct. Dec. 7, 2022).⁹In Schiefelbein, the defendant was charged with various sexual offenses. Id. at *1. The trial court made a pre-trial ruling that no witness would be permitted to testify that the victim had been diagnosed with autism. Id. at *4. At trial, the defendant objected to certain lay testimony relative to the victim's diagnosis, which the court sustained. Id. at *4. The defendant did not seek further relief. Id. at *5. Additionally, a nurse and the victim herself testified, without objection, that the victim was autistic. Id. at *6.

On appeal, the defendant argued the testimony regarding the victim's diagnosis was improper and the trial court should have cured the error sua sponte. Id. at *4. The Pennsylvania Court rejected this argument, stating:

To the extent [the defendant] challenges the adequacy of the trial court's response to alleged breaches of the trial court's ruling, i.e., that the court did not give an immediate cautionary instruction or sua sponte declare a mistrial, the claim is waived. . . . As our recitation above demonstrates, [the defendant] made a single objection to the use of the term "autism," . . . which the trial court sustained, and to which [the defendant] made no further objection. Thus, any claim regarding this issue is not before this Court; the trial court did not adversely rule on [the defendant's] objection. See Epstein v. Saul Ewing, LLP, 7 A.3d 303, 314 (Pa. Super. 2010) (declining to address issue where trial ruling benefitted appellant).

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Id. at *6. Despite concluding the defendant had waived any claim of error, the Pennsylvania Court further opined there was no error on the merits because the trial court's "initial decision that only a medical expert could testify about the Victim's autism diagnosis was not supported by law[.]" Id. at *7. The Court expounded upon Pennsylvania caselaw holding that a lay witness may properly testify concerning a victim's mental disability in sexual assault cases and ultimately concluded:

Here, as discussed, we are unable to determine from the record how the issue of the Victim's autism diagnosis arose and the trial court's ruling on the issue was less than absolute. As the trial court later acknowledged, to the extent it did rule lay witnesses could not refer to Victim's being diagnosed with autism, the ruling was not supported by case-law. [The defendant] largely failed to object, never requested a cautionary instruction, and never sought a mistrial. . . . [The defendant's] second issue is both waived, and even if not, does not merit relief.

Id. at *8.

Schiefelbein's discussion of the merits of the evidentiary issue is non- binding dicta in an unpublished opinion. Moreover, the decision is distinguishable on the facts from the present appeal, and its analysis is based on caselaw rather than specific rules of evidence.¹⁰Therefore, we decline to apply the reasoning of Schiefelbein here.

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Denton-Higgs further argues the exclusion of lay testimony concerning his diagnosis violated his constitutional right to present a defense. We disagree.

"The right to present a defense does not 'abrogate the rules of evidence.'"

Newcomb v. Commonwealth, 410 S.W.3d 63, 85 (Ky. 2013) (quoting McPherson

v. Commonwealth, 360 S.W.3d 207, 214 (Ky. 2012)). The exclusion of evidence only rises to the level of constitutional violation where the ruling "significantly undermine[s] fundamental elements of the defendant's defense." Id. (quoting Beaty v. Commonwealth, 125 S.W.3d 196, 206-07 (Ky. 2003)). To determine whether the application of an evidentiary rule impairs a constitutional right, the defendant's interest in the challenged evidence must be weighed against the interest the evidentiary rule is meant to serve, and only if application of the rule would be arbitrary in the particular case or disproportionate to the state's legitimate interest must the rule bow to the defendant's right.

McPherson, 360 S.W.3d at 214 (citing Montgomery v. Commonwealth, 320 S.W.3d 28, 41 (Ky. 2010)).

"[T]he lay opinion rule strives to obtain from witnesses a reproduction of their observations in as pure a form as possible (seeking full details of their perceptions rather than generalities that may 'mask guesswork and lack of knowledge')." Lawson, at § 6.05[1][c] (quoting 3 Mueller & Kirkpatrick, Federal Evidence 750 (3d ed. 2007)). In other words, the concept underlying KRE 701

"permits a lay witness to resort to a conclusion or an opinion to describe an observed phenomenon where there exists no other feasible alternative by which to communicate that observation to the trier of fact." Clifford, 7 S.W.3d at 374.

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More specifically, the addition of subsection (c) to KRE 701 was designed to prevent the "smuggling of expert testimony into evidence without satisfying the [reliability] requirements of KRE 702." Lawson, at § 6.05[5] (2025). Denton-Higgs has failed to demonstrate the application of KRE 701 is arbitrary or disproportionate to the legitimate state interests underlying the rule. Moreover, his citation to State v. Burr, 921 A.2d 1135 (N.J. Super. Ct. App. Div. 2007), is inapposite. In that decision, the New Jersey Superior Court determined the trial court erred by excluding expert testimony that the defendant had Asperger's Disorder. Id. at 1149-50. By contrast, in the present matter, the issue is whether lay witnesses may properly describe Denton-Higgs as autistic.

We remain convinced that the distinction between lay and expert testimony under KRE 701(c) represents a vital safeguard to avoid confusion of the issues and misleading the jury. The trial court provided Denton-Higgs with ample opportunity to produce expert evidence relative to his medical condition. For reasons unknown, he chose not to do so and cannot now be fairly heard to complain that the trial court's proper application of the evidentiary rules impaired his right to present a defense.

B. Trial Court Properly Admitted Evidence of Uncharged Acts Involving Animal Cruelty.

Denton-Higgs next argues the trial court erred by allowing the Commonwealth to introduce evidence of prior acts involving cruelty to animals. We disagree.

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Prior to trial, the Commonwealth provided Denton-Higgs notice of its intent to introduce evidence of prior instances where Denton-Higgs had engaged in cruelty to animals.¹¹In response, Denton-Higgs filed a motion in limine to exclude this evidence. At a pre-trial hearing, the Commonwealth advised the court that it did not intend to detail the specific circumstances of the animal abuse. Instead, the Commonwealth represented it merely sought to establish that Fulkerson and Lunneborg knew of the abuse and that was one of the reasons they followed Denton-Higgs to the garage where the shooting occurred. The trial court initially deferred ruling on the motion but later admitted limited testimony in this regard over Denton-Higgs' renewed objection.

At trial, Lunneborg testified that he spoke with Fulkerson before they went to the garage and expressed his concern about the kittens. When asked to explain his concern, Lunneborg stated, "Well, [Denton-Higgs] had problems being cruel to pets." Similarly, Fulkerson testified:

[W]e [Fulkerson and Lunneborg] had talked that there were weapons in the garage. And [Denton-Higgs] made a comment when he was going out the door that he "had a better idea" or "had something better," or something to that effect. And I went out there because [Cook] is older, there are weapons in the garage, there are quite a few kittens in the garage, and I just went out there to check, to make sure that everything was okay.

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This was the extent of the testimony on this subject at trial. Under KRE 404(a), the general rule is that evidence of other crimes is not admissible to show that a defendant is a person of criminal disposition. KRE 404(b) provides an exception to the general rule and provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party. This list of "other purposes" is "illustrative rather than exhaustive."

Rodriguez v. Commonwealth, 107 S.W.3d 215, 219 (Ky. 2003) (quoting Colwell

v. Commonwealth, 37 S.W.3d 721, 725 (Ky. 2000)). Trial courts must cautiously admit evidence of other crimes, wrongs, or acts under KRE 404(b) "with an eye towards eliminating evidence which is relevant only as proof of an accused's propensity to commit a certain type of crime." Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky. 1994). To determine the admissibility of uncharged acts, courts must ascertain whether the evidence is relevant for a permitted purpose, probative of the uncharged act, and not unduly prejudicial under KRE 403. Id. As with other evidentiary rulings, the applicable standard of review is abuse of discretion. Id. Applying the Bell analysis, we cannot conclude the trial court abused its discretion. First, the evidence of the animal abuse was relevant to explain why

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Fulkerson and Lunneborg followed Denton-Higgs to the garage. Notably, Denton-Higgs claimed Fulkerson followed him to the garage to escalate their argument and that Lunneborg had threatened him as he was leaving the house. We have consistently held "the Commonwealth is entitled 'to present a complete, un-fragmented, un-artificial picture of the crime committed by the defendant, including necessary context, background and perspective.'" Melton,

670 S.W.3d at 866 (quoting Major v. Commonwealth, 177 S.W.3d 700, 708 (Ky. 2005)). Moreover, our precedents generally recognize that evidence of prior violent activities may be relevant to disprove an EED defense unless the undue prejudicial effect of such evidence outweighs its probative value. Sherroan v. Commonwealth, 142 S.W.3d 7, 19 (Ky. 2004).

Second, the testimony of Lunneborg and Fulkerson was probative of the uncharged acts. Such evidence is sufficiently probative if the trial judge concludes "the jury could reasonably infer that the prior bad acts occurred and that [the defendant] committed such acts." Parker v. Commonwealth, 952 S.W.2d 209, 214 (Ky. 1997). In the present matter, the jury could have reasonably credited the testimony of Lunneborg and Fulkerson regarding the animal abuse. The general rule in Kentucky is that "[i]t is only where the testimony is so incredible on its face as to require its rejection as a matter of law that the jury will not be permitted to consider it." Ross v. Commonwealth,

531 S.W.3d 471, 475 (Ky. 2017) (quoting Daulton v. Commonwealth, 220 S.W.2d 109, 110 (Ky. 1949)).

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Third, we cannot conclude the undue prejudicial effect of the prior bad acts evidence outweighed its probative value. Undoubtedly, evidence of animal cruelty is potentially inflammatory. However, in the present appeal, the trial court did not permit any witness to describe the specific circumstances of the abuse and the general references at trial were minimal. In addition, the exclusion of the evidence could potentially be prejudicial to the Commonwealth and misleading to the jury as it would essentially allow Denton-Higgs' explanation of Fulkerson's actions to stand unchallenged. We cannot conclude the trial court abused its discretion.

C. Trial Court Properly Admitted Recordings of Video Calls from Jail.

Denton-Higgs argues the trial court erred by allowing the Commonwealth to introduce recordings of two video calls he made from jail on the grounds that such evidence was cumulative, irrelevant, and unfairly prejudicial. We disagree.

The trial court permitted the Commonwealth to play recordings of two video calls Denton-Higgs made to a friend from the jail. In the recordings, Denton-Higgs again admitted to the shooting and implied that he committed the crimes because he "did not want to get the cops called" on him anymore by his own family for "stupid a*s sh*t." He cursed his sister and mocked her anger at him for shooting their mother. At one point, Denton-Higgs remarked,

"we shooters have to stick together[.]" Denton-Higgs and the friend also speculated about how much prison time he would receive. Relative to his

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potential sentence, Denton-Higgs stated he had confessed and told the police

"the whole f**king story."

Our predecessor Court has explained the concept of cumulative evidence as follows:

Evidence cannot be regarded cumulative merely because it tends to establish the same ultimate fact or principle controverted. Cumulative evidence is further or additional evidence of the same kind to the same point.

Torian v. Terrell, 93 S.W. 10, 12 (Ky. 1906). "In other words, evidence is cumulative when it relates to a matter so fully and properly proved by other testimony as to take it out of the area of serious dispute." 23A C.J.S. Criminal Procedure and Rights of Accused § 1686 (2026). We have further observed "that '[n]ot all evidence that is duplicative is therefore cumulative, and evidence should not be excluded on this ground merely because it overlaps with other evidence.'" Doneghy v. Commonwealth, 410 S.W.3d 95, 109 (Ky. 2013) (quoting Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:15 (3d ed.

2012)).

We do not perceive the recordings to be cumulative of prior evidence in the present matter. The evidence of Denton-Higgs' prior confessions to his aunt and police did not take the validity of his EED defense out of dispute. Denton-Higgs' statements on the recordings were relevant and significant evidence tending to confirm the validity of his initial explanations for the shooting and to disprove his later claim of EED. To be sure, the recorded statements did not portray Denton-Higgs in a flattering light. However, we

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have long recognized that "[v]irtually all evidence is prejudicial or it isn't material. The prejudice must be 'unfair.'" Ford Motor Co. v. Fulkerson, 812 S.W.2d 119, 127 (Ky. 1991) (quoting Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir. 1977)). The evidence here was certainly prejudicial, but we discern no indication it was inflammatory or that any undue prejudice outweighed the probative value. The trial court did not abuse its discretion.

D. Cumulative Error Does Not Warrant Reversal.

Finally, Denton-Higgs argues that cumulative error warrants reversal of his convictions. We disagree.

Under the cumulative error doctrine, "multiple errors, although harmless individually, may be deemed reversible if their cumulative effect is to render the trial fundamentally unfair." Brown v. Commonwealth, 313 S.W.3d 577, 631 (Ky. 2010). Cumulative error has been found "only where the individual errors were themselves substantial, bordering, at least, on the prejudicial." Id. (citing Funk v. Commonwealth, 842 S.W.2d 476 (Ky. 1992)). Further, "[w]here . . . none of the errors individually raised any real question of prejudice, we have declined to hold that the absence of prejudice plus the absence of prejudice somehow adds up to prejudice." Id. (citing Furnish v. Commonwealth, 95 S.W.3d 34 (Ky. 2002)).

As we have found no individual errors, there can be no cumulative error here.

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CONCLUSION

For the foregoing reasons, the judgment of the Henderson Circuit Court is affirmed.

All sitting. Lambert, C.J.; Bisig, Conley, Goodwine, Keller and Nickell, JJ., concur. Thompson, J., concurs in result only.

COUNSEL FOR APPELLANT:

Shannon Dupree

Kathleen Kallaher Schmidt Assistant Public Advocates

COUNSEL FOR APPELLEE:

Russell M. Coleman Attorney General of Kentucky Erik Farleigh

Assistant Attorney General